This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-718

State of Minnesota,

Respondent,

vs.

Thomas Arvin Gearman,

Appellant.

Filed January 14, 1997

Affirmed

Harten, Judge

Sherburne County District Court

File No. K9-95-1364

Hubert H. Humphrey, III, Attorney General, John Docherty, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Walter M. Kaminsky, Sherburne County Attorney, Sherburne County Courthouse, 13880 Highway 10, Elk River, MN 55330 (for Respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Harten, Judge, and Foley, Judge.[*]

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellant Thomas Gearman challenges his conviction for conspiracy to commit a controlled substance crime, arguing that the state failed to establish an agreement to manufacture more than 50 grams of methamphetamine within a 90-day period. Because we conclude that the jury reasonably could have inferred the existence of such agreement, we affirm.

FACTS

In June 1994, appellant talked with David Conant and Deborah Olson about setting up a clandestine lab to produce methamphetamine. Conant and Olson agreed that appellant could use their garage to process the substance; in return, appellant agreed to give them one-fourth of his production. Subsequently, appellant and Olson purchased large amounts of chemicals and ephedrine needed in the manufacturing process. Appellant manufactured methamphetamine about once a week, producing up to one ounce (about 28 grams) in each cooking cycle.

Following a law enforcement investigation, appellant, Conant, and Olson were charged with conspiracy to commit a controlled substance crime in the first degree. At appellant's trial, a senior DEA forensic chemist, Sanford Angelos, testified that based on his most conservative calculations, the 2,650 grams of ephedrine purchased by appellant and Olson over a 10-month period could produce approximately 1,380 grams of methamphetamine. Breaking down the ephedrine purchases into 90-day periods, Angelos calculated a methamphetamine yield of approximately 600 grams in two 90-day periods and 160 grams in the final 90-day period.

The jury returned a verdict finding appellant guilty of conspiring to manufacture 50 grams or more of methamphetamine within a 90-day period. Judgment was entered and appellant was sentenced. This appeal followed.

D E C I S I O N

Appellant asserts that the evidence does not support the jury's verdict finding him guilty of conspiring to manufacture 50 grams or more of methamphetamine within a 90-day period. We must determine whether, given the evidence and any legitimate inferences that can be drawn from it, a jury could reasonably find appellant guilty of the charged offense. State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995). A guilty verdict will not be disturbed if the jury, giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, reasonably could have found the defendant guilty. Id.

Our consideration of a sufficiency of the evidence challenge warrants stricter scrutiny where the evidence is circumstantial. State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988). Despite this stricter scrutiny, we are mindful that a jury is in the best position to evaluate circumstantial evidence and its verdict must be given due deference. Id.; State v. Anderson, 379 N.W.2d 70, 75 (Minn. 1985), cert. denied, 476 U.S. 1141 (1986); State v. Orfi, 511 N.W.2d 464, 471 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994). In cases involving circumstantial evidence, "[a]s in all cases, the jury determines the credibility and weight given to the testimony of individual witnesses." Bias, 419 N.W.2d at 484 (citing State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985)).

[A] conviction based on circumstantial evidence will be upheld and such evidence is entitled to as much weight as any other kind of evidence, so long as a detailed review of the record indicates that the reasonable inferences from such evidence are consistent only with the defendant's guilt and inconsistent with any rational hypothesis except that of guilt. Inconsistencies in the state's case or possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable. Thus, to succeed in a challenge to a verdict based on circumstantial evidence, a convicted person must point to evidence in the record that is consistent with a rational theory other than guilt.

State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995) (citations omitted).

Appellant argues that the state did not establish an explicit agreement to manufacture more than 50 grams of methamphetamine within a 90-day period. Appellant contends that an agreement alone to manufacture the drug is not enough--the agreement must include the specific amount and time period within which the drug will be produced. Moreover, appellant maintains that the evidence fails to support an inference that such an agreement existed.

A conspiracy is an agreement between two or more persons to commit a crime in combination with an overt act by one of the conspirators in furtherance of the agreement. Minn. Stat. § 609.175, subd. 2 (1996); see Iannelli v. United States, 420 U.S.770, 777, 95 S. Ct. 1284, 1289 (1975) (essence of conspiracy is an agreement to commit an unlawful act); United States v. Boone, 641 F.2d 609, 611 (8th Cir. 1981) ("The essence of a conspiracy is an agreement between two or more persons to commit an illegal act."), cert. denied, 454 U.S. 831 (1981); State v. Jenkins, 411 N.W.2d 504, 508 (Minn. App. 1987) (quoting State v. Kahner, 217 Minn. 574, 581, 15 N.W.2d 105, 109 (1944), cert. denied, 323 U.S. 768 (1944)).

Here, appellant contends that the state must establish an agreement to produce a specific amount of methamphetamine within a specific time period. The existence of an agreement constituting conspiracy need not be proved by direct evidence, however, but may be inferred form the actions of the parties or other facts proved. Iannelli, 420 U.S. at 777 n.10, 95 S. Ct. at 1289 n.10; Boone, 641 F.2d at 611; Kahner, 217 Minn. at 581, 15 N.W.2d at 109; State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 521-22 (1943). Since the agreement as a whole may be so inferred, it follows that any specific term of the agreement (e.g., amount or duration) also may be inferred. Therefore, we disagree with appellant's assertion that the state must prove by direct evidence an explicit agreement to produce more than 50 grams of methamphetamine within 90 days.

Appellant nonetheless asserts that the state failed to establish an inferred agreement to produce more than 50 grams of methamphetamine within 90 days. First, appellant claims that the testimony of Olson and Conant was insufficient to establish that he produced any methamphetamine. To support his claim, appellant cites Minn. Stat. § 634.04 (1996) (stating that a defendant cannot be convicted solely on an accomplice's uncorroborated testimony) and State v. Robinson, 517 N.W.2d 336, 338-40 (Minn. 1994) (reversing a defendant's conviction for sale of controlled substance when the state failed to provide evidence that the substance in packets was in fact cocaine). Appellant's argument misses the mark because whether he produced any methamphetamine at all is irrelevant. Conspiracy crimes are separate from completed substantive crimes. Iannelli, 420 U.S. at 777, 95 S. Ct. at 1289. Because the "essence of a conspiracy" is an agreement, the relevant inquiry is whether the parties had an agreement to produce methamphetamine, not whether any methamphetamine was produced.

Second, appellant maintains that a specific agreement cannot be inferred from the mere fact that he may have committed the substantive offense. Appellant refers to the distinction between a conspirator and an aider and abettor (i.e., the existence of an agreement). Apparently his point is that the evidence did not show that he agreed with Conant and Olson to manufacture more than 50 grams of methamphetamine within 90 days.

From our review of the entire record, we believe the jury could reasonably infer that appellant agreed to manufacture more than 50 grams of the controlled substance within a 90-day period. This inference is supported by (1) testimony of DEA forensic chemist Angelos explaining how much methamphetamine could be produced by the ephedrine that appellant and Olson purchased, (2) testimony of Conant and Olson that appellant intended to produce one ounce (about 28 grams) in each of his weekly cooking cycles, and (3) the amount of methamphetamine appellant ultimately gave Conant and Olson in accordance with their agreement. Assuming, as we must, that the jury believed the state's witnesses and disbelieved any evidence to the contrary, State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995), the evidence was sufficient to support a reasonable inference that the parties agreed to manufacture more than 50 grams of methamphetamine within 90 days.

Finally, appellant argues that the state's evidence is equally consistent with an agreement that he would manufacture an unspecified amount of the controlled substance within an unspecified time period. Appellant cites Bias and claims the circumstances must be consistent only with his guilt and inconsistent with any rational hypothesis except that of guilt. But the totality of the evidence (including that specified in the preceding paragraph) makes it unreasonable to conclude that there was an agreement to manufacture less than 50 grams or more than 50 grams in a time period greater than 90 days. See Ostrem, 535 N.W.2d at 923 ("Inconsistencies in the state's case or possibilities of innocence do not require reversal of a jury verdict so long as the evidence taken as a whole makes such theories seem unreasonable.") (citation omitted) (emphasis added). Therefore, viewing the evidence in a light most favorable to the jury's verdict, while giving due regard to the presumption of innocence and to the standard of proof beyond a reasonable doubt, we conclude that the jury reasonably could have found appellant guilty of conspiracy.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.